People v. Pruett

2019 IL App (4th) 180427-U

THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DONALD R. PRUETT, Respondent-Appellant.

NO. 4-18-0427

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

May 13, 2019

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Adams County

No. 15MR169

Honorable Scott D. Larson, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Knecht and Harris concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the jury's finding that respondent was a sexually violent person because (1) the State presented sufficient evidence to find respondent was substantially probable to engage in acts of sexual violence and (2) the State's improper closing argument did not rise to the level of plain error.

¶ 2 In December 2015, the State filed a petition to commit respondent, Donald R. Pruett, to the Illinois Department of Human Services pursuant to the Sexually Violent Persons Commitment Act (Act). 725 ILCS 207/15 (West 2014). In November 2017, a jury found respondent to be a sexually violent person. Id. § 5(f).

¶ 3 Respondent appeals, arguing (1) the State failed to present sufficient evidence to prove respondent was substantially probable to engage in acts of sexual violence, (2) the State committed prosecutorial misconduct in closing argument, and (3) the trial court erred by failing to grant respondent's motion for a new trial. We disagree and affirm.

¶ 4 I. BACKGROUND

¶ 5 A. Respondent's Conviction

¶ 6 In September 2013, respondent pleaded guilty to aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012)). The trial court sentenced respondent to four years and six months in prison. In December 2015, as respondent's prison term was close to expiring, the State petitioned the trial court to detain respondent pursuant to the Act.

¶ 7 B. The Jury Trial

¶ 8 In November 2017, the trial court conducted a jury trial on the State's petition. Dr. Martha Bellew-Smith, a clinical psychologist who evaluated respondent, testified as an expert witness for the State. Bellew-Smith testified that respondent was a sexually violent person and diagnosed respondent with the mental disorder of "pedophilia, nonexclusive, *** attracted to *** both sexes." In her professional opinion, respondent was substantially probable to reoffend.

¶ 9 Bellew-Smith explained that she relied upon court records, police reports, medical records, and prison records for her evaluation. Initially, respondent refused to be interviewed; however, he later agreed, and Bellew-Smith issued a second report that included that additional information. Bellew-Smith particularly relied upon respondent's "20-some-odd year history of being interested in sex and acting on his interests in sex with very young people."

¶ 10 Bellew-Smith described the factual circumstances of the qualifying offense—aggravated criminal sexual abuse—as well as several other uncharged offenses described in police reports and records from the Adams County State's Attorney's Office. Specifically, in 2013 respondent pleaded guilty to aggravated criminal sexual abuse of a nine-year-old girl for grabbing her buttocks and pubic area. Respondent was arrested in 2002 for masturbating in front of and touching the penis of a four-year-old boy, but the State dismissed the charges, explaining that the evidence was insufficient. In 1999, respondent undressed and fondled a six-year-old girl.

In the 1980s, respondent fondled a 10-year-old girl and her 6-year-old sister on multiple occasions and on one occasion "placed [the older girl's] hand on his penis *** and then placed his hand over her hand and moved it until he ejaculated."

¶ 11 Bellew-Smith also testified that she used two actuarial risk assessment instruments to evaluate respondent: the Static-99R and Static-2002R. Respondent scored a three and a four respectively on those assessments, which placed him in the low to moderate risk category. Respondent was "about one and a half times more likely to reoffend than a [sex offender] who got an average score." However, Bellew-Smith explained that these actuarial scores underestimated respondent's risk of recidivism because they consider limited factors. She also noted that respondent's age resulted in a lower score (on the assumption that older persons offend less) but he committed the qualifying offense when he was 53 and had a "pattern of 24 years of offending." Bellew-Smith therefore believed respondent was substantially probable to reoffend.

¶ 12 Dr. Richard Travis, a clinical psychologist and sex offender evaluator for the Illinois Department of Human Services, testified that he diagnosed respondent with the mental disorders of pedophilia, nonexclusive, attracted to both sexes, and "persistent depressive disorder." In his opinion, respondent was a sexually violent person under the Act and was substantially probable to commit another sexually violent crime in the future. Regarding respondent's offense history, Travis testified consistently with Bellew-Smith and described the factual circumstances of respondent's charged and uncharged offenses dating back to 1989. Travis added that respondent was alleged to have touched a seven-year-old boy's penis in 1993.

¶ 13 Travis also stated that he scored respondent as a three on the Static-99R and a four on the Static-2002R. Travis explained that the actuarial assessments "establish a baseline level of risk," and he used various other factors to formulate his opinion. Travis believed thesetests "underestimated" respondent's risk of reoffending because (1) respondent's most recent offense was committed despite his advanced age, (2) his score was lower because the tests considered only charged conduct, which is subject to a local prosecutor's discretion (in terms of the number of charges to bring), and (3) respondent had not been in treatment, where he would disclose his entire offense history.

¶ 14 Travis also opined that certain factors exacerbated respondent's likelihood to reoffend. Specifically, Travis stated he identified six factors respondent possessed which are factors "associated with increased risk of offending[:]" (1) sexual interest in children, (2) "separation from parents," (3) poor problem solving skills, (4) employment instability, (5) substance abuse, and (6) attitudes tolerant of sex crimes. Based on the totality of the information he considered, Travis opined that respondent was substantially probable to commit a sexually violent crime in the future.

¶ 15 Prior to Bellew-Smith and Travis's testifying about respondent's past sexual misconduct, the trial court instructed the jury that the testimony was not evidence and was being offered for a limited purpose—namely, so the witnesses could tell the jurors what they relied on to form their opinions.

¶ 16 Respondent testified on his own behalf and recounted his employment history from his graduation from high school until June 2012. Between 1997 and 2012, respondent worked at a company that manufactured storage racks for warehouses, starting as a forklift driver and, after multiple promotions, ended as the "nightshift superintendent over the plant or plant manager." As superintendent, respondent oversaw other employees—including other supervisors—handled managerial tasks, and solved problems as they arose. Respondent indicated he had been unemployed since 2012 when his employer went out of business. When asked if he was de-pressed about losing his job, respondent stated, "Probably I would say anybody would at that point, but I wasn't massively depressed[,] I don't guess." Respondent admitted to committing aggravated criminal sexual abuse in 2013. He did not offer any testimony regarding any other allegations of sexual misconduct.

¶ 17 C. Closing Argument

¶ 18 The State argued that it had proved that respondent met all three elements of a sexually violent person in that (1) respondent was convicted of a sexually violent crime, (2) respondent had a mental disorder, and (3) he was substantially probable to reoffend—beyond a reasonable doubt. The State began by explaining that "what the doctors all wanted you to really pay attention to was it was a pervasive pattern of behavior that dates all the way back to the '80s." The State then described the elements of the experts' medical diagnoses that respondent had pedophilic disorder and noted that Travis thought respondent's persistent depressive disorder "was important because, in times of stress, you see a disinhibition by the respondent."

¶ 19 Regarding respondent's likelihood to reoffend, the State argued that the actuarial assessments showed respondent was "one-and-a-half times more likely than the average sex offender to commit another sexually violent crime." The State then argued as follows:

"Then there's the dynamic factors. You see a deviant sexual interest in children. That increases his risk even more. And remember, [the experts] said those instruments they used are very conservative. There's lots of reasons. As you've seen in this case, kids don't always report what happened. Moreover, sometimes when they do, the state's attorneys don't even prosecute the case because they're too hard to win. So that's why that's such a conservative number. It's a low number. Use your common sense. You see it all the time, too, in thenews lately. You know, everyone is coming out of the woodwork saying they were offended. This is exactly what happened here.

I put on those experts to help give you guys guidance, but you can use your own common sense, too, like I said, and you can determine—what's the best predictor of future behavior? Past behavior. 1989, 1993, 1999, 2003, 2013. It continues on and on. The same behavior."

¶ 20 Respondent argued that the experts' conclusions were flawed. Specifically, respondent challenged Travis's conclusion that he had poor...